We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

GMC: when legal advice does not need to be given with the parties present

R (on the application of the British Medical Association) v General Medical Council and Secretary of State for Health (interested party) [2016] EWHC 1015 (Admin)

The BMA brought this action to challenge the legality of rules governing the procedure of Fitness to Practise tribunals, as set out in the schedule to the GMC (Legal Assessors and Legally Qualified Persons) Rules Order of Council 2015 ('the 2015 Rules').

In particular, the claim related to paragraph 6(b) of the rules which states that, in the event that a legally qualified Chair of a tribunal advises the members on any question of law as to evidence or procedure, the Chair shall do so in the presence of every party in attendance or "if the advice is tendered after the Tribunal has begun to deliberate on any decision during the course of the proceedings, include the advice so given in the Tribunal decision, unless the Chair considers it necessary to advise in the presence of every party, or person representing a party, in attendance at the hearing". This differs from the rules regarding legal assessors (who are not members of the tribunal) who must ensure that any advice from them is given or repeated in the presence of parties who are present at the hearing, allowing them an opportunity to make submissions before the tribunal reaches a determination.

The BMA argued that paragraph 6(b) was in breach of the requirements of natural justice and/or the right to a fair trial under article 6 of the European Convention on Human Rights, and that the differentiation between advice given by a legally qualified chair and a legal assessor was irrational which made the disciplinary process unfair. The BMA argued that whenever legal advice is given, the parties in attendance should be given the opportunity to comment or challenge the advice where appropriate (in accordance with a line of previous authority).

Reference was made to Re Chien Sing-Shou which engaged issues relating to advice given by expert architect members of the Hong Kong Architects' Disciplinary Board and which held that such evidence should be given in public. The court rejected the comparison, holding that although the legal Chair has exercises the same functions as a legal assessor, this does not mean that they have an identical role or should be subject to the same regime. The court noted that the GMC's changes to the rules were interpreted to emphasise and enhance the characteristics that they share with other tribunals which exercise judicial as well as fact-finding functions. The court concluded that the 2015 Rules are clear that when giving advice, different provisions apply to legal assessors and legally qualified chairs, and that the case law applying to legal assessors does not read across to legally qualified chairs.

The court considered the fact that paragraph 6(b) enables the Chair to exercise a degree of judgement as to whether it is necessary to advise the tribunal members in the presence of the parties. The court noted that there would be circumstances where it would be procedurally unfair not to give the parties an opportunity to respond on a relevant, controversial or material point of law. The court considered that paragraph 6(b) was no more than a useful reminder for the Chair which reflected the pre-existing principle that no court or tribunal should decide a case on the basis of a material proposition of law upon which the parties have been given no opportunity to comment and challenge. Where the Chair considers it appropriate to advise the other tribunal members in the absence of the parties, this will need to be recorded in the tribunal's decision.

Although the case's relevance is limited to those tribunals which employ legally qualified chairs, it has the potential to have useful precedent value for others who seek to dispense with legal assessors. In addition, the case highlights that the extent to which article 6 and the common law require specific procedural safeguards is case specific.